Haas Commentary to the “Art and Craft of International Environmental Law”

by Peter Haas

I want to thank Dan for writing such a comprehensive book about the conceptual and applied elements in international environmental law (IEL). To a non-lawyer, it reads like a state of the art report on IEL.

International environmental law is particularly striking to me, especially when compared to other substantive areas of international law, in the number of actual texts on which legal analysts rely to interpret international environmental law. Estimates vary, in part depending on whether one measures hard or soft law; hard law that involves more than three countries, commons or merely transboundary texts, and so on. But the point is that we are talking about hundreds, if not thousands of agreements, as compared to the far smaller number of texts constituting, for instance, trade law, or human rights law.

Family resemblances aside, there is a huge degree of variation within international environmental law(s). It is thus extremely difficult to offer significant pronouncements about such a wide corpus of law. While there may indeed be common principles or norms underlying regimes in trade (barriers to trade are bad), and human rights (various individual rights are to be pursued in particular applications), it is not at all clear that such things exist in the environment (sometimes resources are to be managed, sometimes they are to be preserved.) Also, there is enormous variation in terms of the degree to which particular efforts are effective, and the degree to which individual countries comply with obligations. Vast amounts of empirical work remain to be done comparing national behavior across regimes, for instance, particularly since some theories would predict uniform behavior whereas others would expect variation.

Indeed, Dan wisely resorts to talking about IEL as a toolkit of techniques used in individual international treaties, and addresses some of the conceptual difficulties associated with talking about international environmental law, such as what actually constitutes international environmental law, underlying principles, and effectiveness.

More fundamentally, it seems to me that he is describing IEL as a process, rather than a coherent subject of inquiry. IEL is what international environmental lawyers agree that it is, and they don’t yet agree. Moreover, he leads us to imagine the process of developing IEL as a reflexive exercise by state officials in developing their own understandings of what is the environment, and how they are affected by environmental change. Thus, negotiation is a process of information acquisition and, potentially, learning. Refining our understanding of the process of IEL helps promote learning.

Bodansky suggests, consistent with current conventional wisdom in my field of international relations, that there are three major techniques available to clever international lawyers drafting IEL in order to get states to reduce their estimates of f the marginal costs of international environmental cooperation: coercion, inducements, and social learning (what Dan calls “epistemic mechanisms”).

Comparative studies of environmental regimes, and careful process tracing efforts of individual regimes over time, seem to suggest that social learning leads to collective efforts that are more effective and robust than those achieved through the application of other techniques of international environmental law. (Haas, Keohane et al. 1993: ; Andresen, Skodvin et al. 2000: ; Miles 2002: ; Breitmeier, Young et al. 2006) Even George Downs, fully in the enforcement camp of international environmental law, grudging admits that in a number of instances transformational results have followed from managerial institutional design that exceed those predicted by the more limited enforcement school that relies on coercive and inducement techniques to achieve collective action. (Downs, Danish et al. 2000) This is a point that I also have tried to develop elsewhere: that environmental regimes are more effective when they have been developed through a process that includes the involvement of networks of scientists (epistemic communities) and that have stimulated epistemic processes of learning by states. (Haas 2007)

I would like to raise a point which is a little more refined than the one that seems to emerge from Dan’s book, in which he treats each of these techniques as mere alternatives. Arguably the managerial model or epistemic mechanisms lead to superior outcomes, albeit less frequently, than does the enforcement model and the coercion and inducement mechanisms. The challenge for understanding and applying IEL to develop more effective collective action on behalf of the environment requires more careful thinking about the conditions under which each of the mechanisms of IEL are likely to obtain, what policies or interventions can promote those mechanisms, and which countries are most likely to be sensitive to influence by each mechanism.

I would hope that further applications of international environmental law might be more carefully calibrated to take account of the audience which for those laws: in which instances are epistemic measures most effective, or appropriate: in which instances are institutional measures best, and so on. For instance epistemic mechanisms are less likely to pay off when the majority of the participating countries lack adequate scientific and technological capabilities at home. Similarly, institutional mechanisms involving capacity building are less likely to be influential for countries that already enjoy fairly high levels of domestic administrative capacity.

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